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Saturday, 14 May 2011

Copyright.

Well Blogger was totally bloggered last night. The vanishing posts are reappearing all over the place, gradually. Guthrum did not delete the Raccongate post, Blogger did, and it's back now. It does not contain the quote mentioned in the previous post.

What I did with the evening (aside from drinking) was to try formatting that short story book for a site called Smashwords, which will put it into all kinds of electronic formats without charge - but only if the book format is exactly right.

Their formatting guide is a book in itself. This will take a while. Still, all it costs is time.

So I wrote a long streak of drivel about copyright, since it was on my mind. This time I did it offline so if Blogger wants to lose this copy, nyah. Note that I am not any kind of lawyer nor am I involved in any form of copyright law other than the bits that affect my writing, whether fiction or fact. It was triggered by a story about Twitpic's new terms of service, something that has cropped up before with other service providers and which plays on the general public not knowing the difference between copyright and publication rights. So, since I wrote the damn thing, here it is.

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There is a lot of misunderstanding around where copyright is concerned, and a lot of companies keen to take advantage of that lack of knowledge.

First of all, there is no need to register copyright with anyone. As soon as you write, draw or photograph anything, the copyright is yours. If someone else photographs the same thing from the same angle, they have copyright to their image and you have copyright to yours. Even if the images look identical.

Every blog post written by anyone anywhere is copyright of the author. Quotes should be (and usually are) identified as such and the source attributed. In theory, the author of the quoted material can demand that the quote is removed but this is rare because quotes generate hits to the original article. So making it vanish will firstly stop the links and secondly stop anyone else quoting you and therefore stop future links. It’s uncommon for someone to cut off their nose to spite their face in that way, but it can happen.

This blog is all copyright, but I don’t care where the articles go because they’re not making money anyway. It would be nice to get a mention if you use any of this but really, I am not going to chase anyone over it. The books are different.

With ‘Jessica’s Trap’, I still own copyright to the contents of the book but I have a contract that gives the exclusive right to distribution to a publisher. I cannot print copies myself because of that contract, but I can buy them at a generous discount from the publisher so I can still sell signed copies. Copyright to the cover art on that book belongs to the cover artist. I didn’t pay for that work, the publisher did. So when my contract expires, if it’s not renewed and I republish the book elsewhere, I cannot use that same cover art unless the publisher and cover artist agree (and get paid).

Copyright on the story is mine, but distribution rights are not, for as long as the contract is in force. The cover image is not, and will never be, mine to do with as I please.

‘Fears of the Old and the New’ is a different matter. It’s self-published so I can do what I like with it. All the content is mine and so is the cover. The new cover is a blend of two photos followed by a bit of meddling with the image. Both photos are from my own collection and I did all the meddling so all copyright is still mine.

The two photos are of a winter sky over Aberdeen and a summer visit to a stone circle at a place called Port Elphinstone. I don’t own the sky, I don’t own the stone circle and I don’t own the land it stands on. I do, however, own the photos I took of those things.

The stories in that book are mostly previously published. Magazines take first publication rights usually for a period that includes the time the issue is out and for a little while afterwards. Contracts vary. If the contract says ‘all rights in perpetuity’ then either don’t sign it or make sure you’re getting a damn good deal. Once the contract is over, the rights revert to the author, but copyright was always with the author. There is a big difference between copyright and publication rights.

An imaginary friend of mine once wrote a little ghosthunting book called ‘Ghosthunting for the Sensible Investigator’. This was meant to be a bit of a laugh, a non-fiction book by a fictional author. I put it on Lulu.com, had a couple printed up and forgot about it. It’s sold a few copies since and... it was pirated and sold on eBay. I had to contact eBay as the fictional author to complain. I didn’t care about the money, it wasn’t making enough for a decent bottle of anything, but it was the principle of the thing. The guy wasn’t just pirating that little book, he was pirating other peoples’ too. He was infringing copyright.

A long time ago, I tried my hand at cartoons. A few were published in a computing magazine, now defunct. I wasn’t paid and I did not assign copyright to the magazine, yet they appeared in the magazine with ‘copyright, crappy computer comic’ attached to them. Here’s one:

The magazine never had copyright of that image, and really only published ‘with permission’ with no ‘rights’ attached at all. A bit cheeky of them to claim copyright. However, they did not infringe copyright by printing the image. I sent it to them in the full knowledge they were going to print it and agreed to them doing so (although I didn’t know they planned to claim credit for it). Publication rights? They had no contract so they had no right to claim exclusivity. They certainly had no right to claim copyright. But the magazine is gone now anyway. If they were doing the same thing with articles it’s probably not surprising.

Copyright remains with the originator unless you sign a form passing copyright to someone else. That’s common with scientific papers but all it really means is that you can never publish the exact same paper again. You can still refer to it and quote from it. It’s not a bad thing, it stops the shysters republishing the same thing over and over and pretending they have a whole raft of publications. Well, it stops most of them, and it provides a mechanism to deal with the few determined shysters out there. It also means that if someone copies the paper, they aren’t up against you in court. They’re up against the full might of a scientific journal.

Publication rights are different. You sign an agreement that says yes, you still have copyright, but the other party can make use of your words or images for a set period of time and (usually) for a monetary consideration. Normally that includes the proviso that you won’t let anyone else use the same material to make money while the contract is in force. It does not take your copyright in the words/images, it takes your right to distribute them and sells or rents it to someone else.

So. Copyright on anything is yours as soon as you make it. There is no need to register it. Copyright remains yours unless you sign something that gives it to someone else. That’s fine in the case of a scientific publication because once published, it’s in the archives forever. Republishing it would be very, very naughty anyway and no proper scientist would ever even consider it because they'd have moved on to the next experiment. It’s not fine in the case of pretty much anything else.

Publication rights involve a contract between the copyright holder and someone else who can distribute the thing far better than the holder could. ‘All rights in perpetuity’ should be avoided because although it does not reassign ccopyright it is, in effect, giving up copyright forever. Publication contracts should be for a specified time and for a specified return. Sometimes it’s money, sometimes it’s publicity. Whichever it is, there’s a deal involved and when the deal is over, the originator still has the copyright and can sell the thing again.

And now, the fiddles.

These are usually buried in user agreements and work on the basis that most people understand copyright, but few understand publication rights. A good example is to be found in the Twitpic agreement:

The new terms of service state: 'You retain all ownership rights to Content uploaded to Twitpic.'However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.'

Some commenters below that story still believe that it would be illegal for Twitpic to do this, but it’s not. As long as you agree to the terms and conditions, you agree to let them use anything you put on the site for any purpose they like, including selling it, and they don’t have to pay you a penny. It’s legal because by ticking the box that says ‘I agree’, you give permission. Oh, you still own the copyright but you’ve just given blanket permission for the site to make use of, and profit from, your work without paying you.

You’ve just handed over worldwide rights for those photos in perpetuity (note the ‘by submitting content’, not ‘as long as it’s on the site’. The act of submitting is what grants Twitpic the rights) - and you’ve handed them over for free. They can now do what the hell they want with those images and you will not see any of the profit. All perfectly legal because you agreed to it when you signed up.

It’s cleverly worded. You retain copyright (‘ownership rights’) and you grant a non-exclusive right to Twitpic to do what they like, forever. So you could still try to sell the images but good luck with that. You are no longer selling ‘first rights’ and you cannot offer ‘exclusive rights’. The value of your images, no matter how brilliant, drop to near zero as soon as you place them on the site.

Okay, you’ve already blown first-rights by publishing them on the net yourself. You might also think ‘Ah, so what? They’re just holiday snaps and the office party’. You know, those photos where you had the camera set on a timer and just as it went off, a gopher popped up and looked right into the lens. That’s right, the sort of thing you find in the funny-photo section of the newspapers.